FEDERAL COURT OF AUSTRALIA

Mladenov v Secretary, Department of Social Services [2015] FCA 1472

THE COURT ORDERS THAT:

1.    The purported appeal is struck out as incompetent.

2.    The applicant pay the respondents’ costs of the proceeding.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

INTRODUCTION

1    Before the Court is an appeal by Risto Mladenov, the applicant, from a decision of the Administrative Appeals Tribunal, AAT, made on 24 February 2015.

2    The AAT affirmed a decision of the Social Security Appeals Tribunal, SSAT, made on 10 September 2012, finding that the applicant had a debt to the Commonwealth of $23,562.77 in respect of disability support pension (DSP) payments and a debt to the Commonwealth of $6,458.73 in respect of Newstart allowance payments.

PROCEDURAL HISTORY

3    It is necessary to relate the procedural history of the matter in order to introduce some of the issues raised in the appeal.

4    On 25 September 2012, the applicant applied to the AAT for review of the SSAT decision made on 10 September 2012. The AAT gave directions for the preparation of the matter for hearing, including for the filing of submissions. The applicant did not comply with the directions.

5    On 13 June 2013, the AAT dismissed the matter for failure by the applicant to comply with the directions.

6    On 20 June 2013, the applicant applied to the AAT for reinstatement of the matter.

7    On 8 July 2013, the AAT refused the application for reinstatement.

8    On 2 August 2013, the applicant appealed to this Court from the refusal of the AAT to reinstate the matter.

9    On 31 October 2013, Marshall J dismissed the appeal.

10    The applicant let the time for appeal pass, but then on 13 December 2013 applied for an extension of time within which to appeal from the judgment of Marshall J.

11    On 28 January 2014, Mortimer J granted the applicant an extension of time within which to file and serve a notice of appeal. Her Honour thought there was an arguable case of a denial of procedural fairness. The applicant had not been legally represented throughout the progress of the matter. In the course of the procedural steps taken in the AAT proceeding the applicant sought certain documents from the respondents, Secretary, Department of Social Services (formerly Secretary, Department of Families, Housing, Community Services and Indigenous Affairs) and Secretary, Department of Education, Employment and Workplace Relations. The AAT, in her Honour’s view, had not investigated and determined whether the applicant should be provided with those documents. Her Honour held that there was an arguable case that the applicant had been denied procedural fairness when the proceeding in the AAT was brought to an end without any adjudication of the applicant’s application for production of documents.

12    On 25 March 2014, the parties agreed to set aside the AAT decision refusing to reinstate the matter, and they agreed to an order that the appeal be allowed and that the matter be reinstated in the AAT. Murphy J made orders by consent in those terms.

13    In view of this history, the AAT convened a directions hearing on 25 June 2014 to consider the applicant’s request for the production of documents by the respondents.

THE DIRECTIONS HEARING ON 25 JUNE 2014

14    The directions hearing was conducted on 25 June 2014 by telephone.

15    In the course of the directions hearing the AAT referred in turn to each of the paragraphs in the applicant’s request for documents and the respondents’ reply, heard argument from both parties about each document or category, and then ruled in respect of each request.

16    On 8 May 2013, the applicant had sought documents from the respondents by sending a list headed “DOCUMENTS i SHOULD HAVE”. The first seven paragraphs of the 13 paragraph document listed categories of documents as follows:

1.    The all debt which have been raised from 01.03.2004 with the ID numbers and the amount till today.

2.    The all notes about Georgi Ristoski T45 page 254

3.    All notes should have for K&M Transport of 19 Mossfield Mews Tullamarine 3043. T11 page 26

4.    Should have more documents, video, other records, from activity of Industrial Accident Assessors Pty Ltd

5.    Must have all documents how have been raised that amount of $24.119.829, and I will accept this debit is truth and correct 100% by Centrelink, must be recover all debt. Page 229 First 3 Lines. That is the debt I own [sic] to Centrelink.

6.    Should have more documents before 14-1-2002, when have been made this statement by Ken Richards Director of KNN.TFF. T9 page 23, and will be not error at all.

7.    Must have more documents for Portlink Pty Ltd, P/L Holdings Pty, Ltd and Gaffeney Transport Pty Ltd.

17    On 22 May 2013, the respondents’ solicitor replied to the applicant’s request by addressing each paragraph of the request. The reply relevantly included the following:

2.1.    in relation to paragraph 1, it is not clear what you mean when you refer to "the all debt" – in our Statement of Facts and Contentions we made it quite clear as to the amount of the debt we say is owed by you to the Commonwealth;

2.2.     in relation to paragraph 2, it is not clear exactly what you are seeking when you refer to "all notes" about 'Georgi Ristoski' (p254 of T docs);

2.3.     in relation to paragraph 3, please note that all documents relevant to your employment with K & M Transport are already contained in the tribunal documents. We are not sure what additional material you require;

2.4.     in relation to paragraph 4, you appear to seek additional documents in relation to the surveillance carried out on you in 2003 - again we do not know what further documents you seek in relation to this issue. Please advise as to exactly what further documents you require any [sic] why they are relevant;

2.5.     in relation to paragraph 5, you appear to be asking for the documents to show how the debt of $24,119.829 for the DSP was raised. We note that the actual debt is only $23,562.77. These documents are actually set out in the tribunal documents at T34;

2.6.     in relation to paragraphs 6 and 7, you are seeking additional documents in relation to the relevant companies where you worked although all relevant documents obtained from those companies were included in the tribunal documents. It is not clear exactly what documents you claim should be included.

18    In relation to the documents referred to in [2.1] of the respondents’ reply, the AAT determined that there was sufficient material in the documents lodged by the respondents under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) (the “T documents”), which had been provided to the applicant for him to understand the basis of the calculation of the debt. The applicant agreed. He said “Okay we can leave it.”

19    In relation to [2.2] of the respondents’ reply, the AAT asked the applicant to what issue the request related. The applicant seemed to say that Georgi Ristoski was a name the respondents had suggested that the applicant had used. After hearing his rather incoherent explanation the AAT ruled that the item was not relevant to the matter before it.

20    In relation to the documents referred to in [2.3] of the respondents’ reply, the applicant seemed to be saying that he had obtained further documents than those produced by the respondents and that the respondents should be made to produce the documents which he had, presumably because he thought that the respondents must also have them. The solicitor for the respondents explained that all the documents relating to KNM Transport were produced to the applicant in the T documents. The AAT explained to the applicant that if the documents produced by the respondents did not substantiate its case, then the respondents would lose.

21    In relation to the documents referred to in [2.4] of the respondents’ reply, when the AAT asked the applicant to explain how the documents were relevant, the applicant was not able to do so. Ultimately, the applicant did not press this item.

22    In relation to the documents referred to in [2.5] of the respondents’ reply, the AAT drew the applicant’s attention to material in the T documents on the subject, and the applicant then accepted the explanation and said that the AAT should “forget it then”.

23    In relation to the documents referred to in [2.6] of the respondents’ reply, so far as they were referred to in [6] of the applicant’s request, the AAT was satisfied that the respondents had produced all the documents relating to KNM Transport which he had. The AAT explained to the applicant that if he had evidence which contradicted the documents produced by the respondents he should produce it. The AAT also explained that the applicant could ask the AAT to issue a summons to a witness who could support the applicant’s case.

24    In relation to the documents referred to in [2.6] of the respondents’ reply, so far as they were referred to in [7] of the applicant’s request, the AAT was satisfied that the T documents concerning Port Link Pty Ltd (Port Link) and Gaffeney Transport were the only documents held by the respondents.

25    After going through the list of documents, sought by the applicant, the AAT discussed a number of other issues which the applicant raised and for which he seemed to be saying that he would like further documents. The AAT explained that if the documents provided by the respondents did not prove their case then the respondents would lose. If the applicant had evidence which contradicted the respondents’ case he could provide it and it would be considered.

26    The AAT then made directions which required the applicant to file and serve any documents additional to the T documents on which he intended to rely. The AAT did not order that the applicant provide any written facts, issues and contentions in view of the applicant’s limited English language skills. The AAT directed that the respondents may provide any further documents on which they intended to rely and gave leave to the respondents to amend their statement of facts, issues and contentions. There was a discussion about the amount claimed by the respondents. The applicant seemed to think that the claim was $24,000,000. The AAT explained that the calculation of the debt was set out in the statement of facts, issues, and contentions and that it amounted to around $24,000, not $24,000,000.

THE AAT DECISION

27    On 24 February 2015 the AAT affirmed the decision of the SSAT of 10 September 2012 that the applicant had incurred a DSP debt and a Newstart allowance debt, save for a variation to the amount of the Newstart debt.

The Newstart Allowance Debt

28    The AAT found that the applicant had incurred a debt of $6,458.73 between 7 September 1995 and 25 June 1996 by way of overpayment of the Newstart Allowance or its differently named equivalent.

29    In the relevant period s 1224(1) of the Social Security Act 1991 (Cth) (the Act) provided:

If:

(a)    an amount has been paid to a recipient by way of social security payment under this Act or the 1947 Act; and

(b)    the amount was paid because the recipient or another person:

(i) made a false statement or a false representation; or

(ii) failed or omitted to comply with a provision of this Act or the 1947 Act;

the amount so paid is a debt due by the recipient to the Commonwealth.

30    The AAT found that the applicant failed to disclose to Centrelink that he earned an income of $26,065 in the 1995-96 income year when he was employed by Port Link. The failure of the applicant to disclose this income was in breach of the continuous reporting obligation which the applicant owed to Centrelink pursuant to statute.

31    The applicant’s employment and income was uncovered when Centrelink carried out a data-match with the Australian Tax Office. The applicant admitted in the hearing that he formally changed his name from Risto Mladenov to Chris Kostov in November 1996. The AAT relied on a 1995-96 income tax return in the name of Chris Kostov which disclosed an income of $26,065 from employment by Port Link as a truck driver. It also relied on a statement made by the applicant on 12 September 1996 in a Change of Particulars form relating to the applicant’s account with the TWU Superannuation Fund. On the form, the applicant stated that his previous employer was Port Link.

32    The applicant gave evidence in response to these documents. The AAT rejected his evidence.

33    The applicant said that he did not work in the 1995-96 tax year at all. He said that he suffered an injury and did not return to work until September 1996. The AAT had evidence from the Centrelink file which showed the applicant submitted a medical certificate which expired on 21 March 1995 and that the applicant then went on the Job Search Allowance, the predecessor of the Newstart Allowance.

34    The AAT said that the applicant’s explanation of the TWU Superannuation Fund document was almost unintelligible.

35    The AAT also referred to evidence which the applicant had given to the authorised review officer who originally reviewed the decision of Centrelink to raise the debt. In that evidence the applicant said that Port Link closed down in December 1995 when he stopped working for the company. The AAT reviewed the public records of the company and concluded that they demonstrated that the company continued trading in 1996 and 1997 when it granted charges over its assets.

36    Having considered the evidence of the respondents and the applicant, the AAT did not accept the applicant’s defence, and found that the applicant had failed to report income, in breach of continuous reporting requirements, and had therefore incurred the Newstart allowance debt of $6,458.73.

The Disability Support Pension (DSP) Debt

37    The AAT found that the applicant had incurred a debt for overpayment of DSP in the amount of $23,562.77 for the period 17 November 2001 to 9 January 2004.

38    In the relevant period s 1223(1) of the Act provided:

Subject to this section, if:

(a)    the social security payment is made; and

(b)    a person who obtains the benefit of the payment was not entitled for any reason to obtain that benefit;

the amount of the payment is a debt due to the Commonwealth by the person and the debt is taken to arise when the person obtains the benefit of the payment.

39    Centrelink obtained a statement from Mr Ken Richards, a director of KNM Transport Pty Ltd (KNM Transport). Mr Richards identified the applicant from a photograph, stating that he was known to him as Chris Kostov, an employee of the company. Mr Richards said that Mr Kostov had commenced as a casual employee on 5 December 2001 and was employed on a full time basis at the time the statement was made. The statement was dated 14 January 2002 but Centrelink computer records suggest that the statement was taken on 6 January 2004. Centrelink also obtained weekly salary payment details in respect of the applicant’s employment with KNM Transport.

40    The AAT referred to ss 68, 69 and 74 of the Social Security Administration Act 1999 (Cth) (the Administration Act) which obliged the applicant to notify Centrelink of his employment with KNM Transport.

41    The applicant gave evidence that he notified Centrelink of his employment on 6 or 14 January 2004. He relied on a computer entry in the Centrelink file to establish this fact. He contended that the entry demonstrated that he contacted Centrelink at that time. However, the AAT found that the applicant misconstrued the computer entry. In fact it recorded that the DSP was suspended on that date and that Centrelink was to notify the applicant within 14 days of the suspension. It was not, as the applicant claimed, an entry made as a result of what he said he had told Centrelink.

42    The AAT then referred to the following evidence:

38.    When cross-examined about him notifying Centrelink of his employment with KNM Transport, Mr Mladenov said that if Centrelink sent him the money after being notified, he believed he was entitled to some part of the money and that in any event he didn’t care. He said it was their mistake and they had to fix that.

43    The AAT then referred to two entries in the Centrelink records as follows:

39.    Mr Mladenov was directed to a note on the Centrelink computer dated 19 August 2003. The text of that file note is as follows:

Cust suspended as working more than 30 HRS/WK (see text)

Cust has been suspended as employer report from KNM transport verified

That A/N has been employed on casual basis from 5/12/01, then F/T from 18/4/02. Spoke to Andrea Richards who confirmed that Cust is still employed working at least 40 HRS/WK, more with O/T. Cust has not advised of employment or declared any earnings. OVP [overpayment] to be investigated.

40.    That entry was followed by an entry dated 25 August 2003 where it appears Mr Mladenov phoned Centrelink and he was transferred to the Compliance Section. The text recorded by Centrelink is as follows:

A/N Rang re susp of DSP-said he hasn’t worked since 1994.

A/n rang re suspension of DSP. I explained to cust that KNM Transport confirmed that he is employed on f/t basis of at least 40 hrs per week, therefore he is not qualified for DSP. He said that he has never heard of this employer and hasn’t worked since 1994. I asked cust if he has any ATO correspondence which can verify his Tax File No. He said he will have a look and advise if he has it. I advised cust that I will restore his DSP for now but that employer will be contacted to verify identity.

44    The applicant responded to this evidence by saying that the Centrelink officer referred to KNM Transport Tullamarine. He told the officer that he did not work for that body. The reason he gave the AAT was that he worked for KNM Transport South Kingsville. The AAT did not find this explanation convincing because none of the file notes recorded by Centrelink refer to KNM Transport Tullamarine. Further, the applicant had already given evidence that if Centrelink continued to pay him money after being notified, then that was its mistake and he regarded himself as entitled to retain the money paid. The AAT regarded the applicant’s response to this evidence as convoluted and almost unintelligible. The AAT found that the applicant did not notify Centrelink of his employment with KNM Transport, and was therefore overpaid in the sum of $23,562.77 for the period between 17 November 2001 and 9 January 2004.

Waiver of debts

45    The AAT said that although the applicant did not provide evidence or make submissions about the possibility of waiver of the debts it would examine that possibility in any event.

46    The AAT first considered compulsory waiver under s 1237A of the Act which provided:

(1)    Subject to subsection (1A), the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt.

(1A)    Subsection (1) only applies if:

(a)    the debt is not raised within a period of 6 weeks from the first payment that caused the debt; or

(b)     if the debt arose because a person has complied with a notification obligation, the debt is not raised within a period of 6 weeks from the end of the notification period;

whichever is the later.

47    The AAT held that the debts arose because the applicant failed to notify Centrelink of his employment, and made false representations to Centrelink, and not because of administrative errors. Consequently, s 1237A was not applicable.

48    Section 1237AAD of the Act provided for discretionary waiver as follows:

The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:

(a)    the debt did not result wholly or partly from the debtor or another person knowingly;

(i)    making a false statement or a false representation; or

(ii)    failing or omitting to comply with a provision of this Act, the Administration Act or the 1947 Act; and

(b)    there are special circumstances (other than financial hardship alone)     that make it desirable to waive; and

(c)    it is more appropriate to waive than to write off the debt or part of the debt.

49    The AAT held that this section was not applicable because the debts arose because the applicant failed to notify Centrelink of his employment with Port Link and KNM Transport and also made false statement that he had not worked since 1994 and had not worked for KNM Transport.

50    The AAT then determined that there was no evidence of special circumstances that would justify the debts being written off.

51    Finally, the AAT held that the amounts of the debts should be recovered under s 1231(1) of the Act by making deductions from the DSP payments now being received by the applicant.

52    At the time of the AAT decision, s 1231(1) of the Act relevantly provided that a debt under the Act:

……may be recovered by making deductions of amounts determined under subsection (1A):

(e)  from any social security payments; or

(f)  from any payments of arrears of social security payments; or

(g)  partly from any social security payments and partly from any payments of arrears of social security payments.

THE NOTICE OF APPEAL

53    On 24 March 2015, the applicant filed a notice of appeal together with an affidavit which was in the nature of particulars of the basis of the appeal.

54    Two complaints lie at the centre of these documents. The first is:

Still I waiting for numbers of documents from respondent to be produced.

55    The second complaint is:

AAT not accept my relevant evidence, but AAT acceping [sic] the same evidence from respondent.

OBJECTION TO COMPETENCY

56    On 7 April 2015, the respondents filed a notice of objection to the competency of the appeal on the ground that the notice of appeal does not identify a question of law as required by s 44(1) of the AAT Act so as to enliven the Court’s jurisdiction.

57    Section 44(1) of the AAT Act provides:

A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.

CONSIDERATION

58    In addition to the affidavit accompanying the notice of appeal, the applicant filed a document entitled “Submission” which covered the same ground as the affidavit and was in large part identically worded.

59    The applicant argued his case on appeal for the production of documents as if it were a rerun of the application before the AAT. He made no attempt to point to a question of law arising from the consideration by the AAT of his claim for production of the documents. That is perhaps not surprising as the applicant was not legally represented and apparently did not understand that the particular jurisdiction of the Court was limited by s 44(1) of the AAT Act.

60    There is an open question whether a ruling in respect of the production of documents is a decision for the purpose of s 44(1) of the AAT Act: Yao v Secretary, Department of Education, Employment and Workplace Relations [2010] FCA 241, at [29]. For present purposes it will be assumed that the conclusions of the AAT made at the directions hearing on 25 June 2014 in relation to the production of different categories of documents were each such a decision.

61    The list of documents claimed by the applicant in the course of the appeal was somewhat more limited than the list of documents sought by him before the AAT. However, the documents now claimed were also claimed before the AAT. The documents now claimed mostly related to the applicant’s employment with Port Link and KNM Transport. In the 25 June 2014 directions hearing, the AAT determined that the respondents had provided all of the relevant documents which they had relating to those subjects. The applicant did not suggest that the AAT was wrong in its conclusions. There is no basis for contending that the AAT made any error in the conclusions it reached.

62    Even if the AAT had made a mistake in its assessment, the mistake would not raise any question of law. The decisions of the AAT in respect of documents were discretionary decisions. The extent to which such decisions might be questioned on appeal is limited by the principles established in House v The King [1936] HCA 40; 55 CLR 499 at 504:

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

The applicant did not point to any error in the AAT’s reasoning which invoked these principles.

63    A question of law may have arisen if the AAT had failed to accord the applicant procedural fairness in the resolution of the claim for production of documents. No such allegation was made and nothing in the transcript of the directions hearing provides any basis for such a suggestion. The AAT referred to each of the documents or categories claimed and then heard the submissions from each party relating to the claim for production of those categories or documents. The AAT then determined the argument separately for each of the categories or documents. In many instances the AAT explained to the applicant the process to be followed at the hearing and how any deficiency in the documentary proofs provided by the respondents would mean that the respondents would not succeed. The AAT also explained that it could compel witnesses to attend to give evidence on behalf of the applicant if he asked the AAT to do so and provided reasons for the exercise of that power. In those ways the AAT provided the applicant with assistance appropriate to his situation as a lay person conducting his defence in a legal proceeding without a lawyer.

64    In these circumstances no question of law arises from the decision of the AAT made at the directions hearing in respect of the production of documents.

65    The second central complaint of the applicant is that the AAT did not accept his evidence but rather accepted the evidence of the respondents. In his affidavit and submission the applicant identified multiple passages in the transcript of the hearing before the AAT containing evidence or submissions which he contends should have been accepted. The passages referred to include the following: T8 lines 30 – 40; T130; T131; T136 lines 26 – 45; T137; T10 line 9 to 17; T4 lines 35 to 45; T5 lines 1 to 47; T6 lines 1 to 42; T7 lines 20 to 47; T116 lines 37 to 44; T145 lines 24 to 47; T146 lines 16 to 23; T138 lines 31 to 47; T139 lines 1 to 27; T86 line 37 to 47; T133 line 1 to 21; T116 lines 41 to 43; T137; T3 lines 1 to 41; T19 lines 28 to 33; T22 lines 25 to 46.

66    Most of these passages reflect the applicant’s contention that he did not work for Port Link in the 1995-96 income year, and that he did notify Centrelink that he was employed by KNM Transport.

67    By way of example, the applicant relied on the following passage at T138 concerning notification of Centrelink:

MR MLADENOV: Now, the Centrelink was not fair, I say again, and that's why on three attempts when notify Centrelink no one done it and still continue coming the money. You say why not return the money I said I don't care. I say even now I don't care. Somebody give me the money I take it. Why not? I no stealing, I take it, and was taking. Then on 9 January they stopped 2004. Now, I didn't argue why they stop. I only argue - most of my argument towards the - with the Centrelink for '95/'96 and again KNM Transport, South Kingsville. When I notify them and I said I been asked that I ring. I spoke with somebody on the phone and he arranged me appointment to go see him in the office, Neil Carroll, authority review officer from previous case, and I told him the same things. If I go back by the transcript 2006-8 or so on when I've been asked question exactly the same I been told, which is true.

If the tribunal not accept this, that's fine, I cannot argue. Maybe somebody else can help. But I said I notified them three times and after that I don't care.

68    In relation to his contention that he did not work in 1995-96, by way of example, the applicant relied on the following passage:

MR MLADENOV: … they're saying I was employed – sorry I raised my voice – I was employed '95/'96, that financial year, and I claim in '96, but which is not true. I didn't work one second.

SENIOR MEMBER: Yes. Well, that's something different. We'll deal with that. Yes. Okay.

MR MLADENOV: I want to prove it because I have been working '94/'95. Yes. And I injury myself, '95 in January. Since January '95, 13 January '95, I didn't was working until September '96, 12 September I believe it was that when I tried to do something.

69    Again, the applicant attempted to reargue the merits of the case on appeal. He did not articulate any question of law to be determined. He simply contended that the AAT should have found for him on the facts. In an appeal under s 44(1) of the AAT Act the jurisdiction of the Court is limited to resolving questions of law. As Brennan J said in Waterford v The Commonwealth [1987] HCA 25; 163 CLR 54 at 77:

A finding by the A.A.T. on a matter of fact cannot be reviewed on appeal unless the finding is vitiated by an error of law. Section 44 of the A.A.T. Act confers on a party to a proceeding before the A.A.T. a right of appeal to the Federal Court of Australia “from any decision of the Tribunal in that proceeding” but only “on a question of law”. The error of law which an appellant must rely on to succeed must arise on the facts as the A.A.T. has found them to be or it must vitiate the findings made or it must have led the A.A.T. to omit to make a finding it was legally required to make. There is no error of law simply in making a wrong finding of fact. ...

70    In his affidavit and written submission, the applicant says that the AAT was not interested in or did not care about his evidence. In [16] of his affidavit he stated:

If can be read all transcript, and will be see that error of law from a Tribunal, on my relevant evidence, the Tribunal is not interest or don’t care, but from respondent on same evidence Tribunal care and accepted.

71    The transcript references provided by the applicant in his affidavit, for example those listed in [65] above, mainly referred to evidence on the two issues referred to in [66] above, namely the applicant’s contentions that he did not work for Port Link in the 1995-96 income year, and that he did notify Centrelink that he was employed by KNM Transport. In several instances the references were to passages in which the AAT ruled certain evidence was irrelevant, or where the AAT accepted the respondents’ evidence rather than the applicant’s. If the applicant’s complaint alleged a denial of procedural fairness, that complaint would have raised a question of law. But, in context the submission by the applicant that the AAT ‘was not interested in or did not care about his evidence’ particularised the failure of the AAT to accept the defence which the applicant mounted. In any event, no allegation of a denial of procedural fairness could be sustained. The AAT listened to the evidence given by the applicant and raised issues arising from other evidence where it contradicted the evidence given by the applicant in order to give him an opportunity to respond to the other evidence.

72    As the applicant has not identified any question of law to be resolved by the Court, the Court does not have jurisdiction and the purported appeal is incompetent.

Associate:

Dated:    22 December 2015